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C&e  Li&rarp 


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(Hmtoersitp  of  J!3ort&  Carolina 


Collection  ot  jQortf)  Catoliniana 
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EXPLANATION 


OF  THE 


FUND  HELD  IN  TRUST 


BY 


THE  UNITED  STATES 


FOR 


THE  NORTH  CAROLINA  CHEROKEES. 


BY    WM.    H.    THOMAS. 


WASHINGTON: 

PRINTED   BT  LEMUEL  TOWEES. 
1  858. 


To  the  Hon.  Alfred  B.  Greenwood, 

Chairman  of  the  Committee  on  Indian  Affairs. 

Washington,  D.  C,  February  1,  1S5S. 

Sir  :  As  the  representative  of  the  North  Carolina  Chero- 
kees,  I  beg  leave  to  refer  to  a  resolution  introduced  in  the 
House  of  Representatives,  by  the  Hon.  T.  L.  Clingman,  which 
passed,  and  is  now  under  cousideration  of  the  committee. 
And  by  way  of  explanation  to  furnish  the  facts  connected 
with  the  origin  of  the  trust-fund  therein  referred  to,  and  the 
objects  designed  to  be  attained  by  the  resolution, 

"  Jiesolved,  That  the  Committee  on  Indian  Affairs  inquire 
into  the  expediency  of  amending  the  fourth  and  fifth  sections 
of  an  act,  entitled,  An  act,  making  appropriations  for  the  cur- 
rent and  contingent  expenses  of  the  Indian  Department,  &c, 
approved  29th  July,  1818,  so  as  to  regulate  the  payment  of 
interest  due  to  the  North  Carolina  Cherokees,  on  funds  held 
in  trust  for  them  by  the  United  States  under  the  said  act,  so 
as  to  estimate  the  interest  on  what  remains  due  in  each 
year  ending  on  the  29th  of  July,  agreeably  to  a  census  roll 
of  said  Indians.  And  in  case  of  the  death  of  any  of  the  In- 
dians, to  estimate  the  interest  to  the  time  of  payment,  which, 
with  the  principal  of  $53  33,  to  be  paid  over  to  the  legal  rep- 
resentatives of  such  Indians  remaining  in  the  State  of  North 
Carolina  at  the  time  of  payment.  And  in  case  of  there  being 
no  heirs  at  law  to  receive  it,  then  to  pay  over  the  same  to  the 
survivors  of  that  portion  of  the  tribe  and  their  legal  repre- 
sentatives, in  accordance  with  the  laws  of  the  State. 

So  early  as  the  year  of  1783,  the  State  of  North  Carolina 
passed  an  act  to  protect  the  Cherokee  Indians  residing  within 
her  chartered  limits,  and  guaranteed  the  title  of  their  lands 
designated  by  naturnal  boundaries.  The  effect  of  which  grant, 
agreeably  to  the  decisions  of  the  Supreme  Court  of  the  State, 
was,  to  vest  the  fee  simple  in  the  Indians  as  tenants  in  com- 
mon while  they  continued  on  the  land.  (See  3d  Hawks'  Re- 
ports— page  151 — Enchella  vs.  Welch.) 

In  1808,  as  shown  by  the  preamble  to  the  Cherokee  Treaty 
of  1817,  the  North  Carolina  Cherokees,  known  as  the  Upper 
Towns,  and  the  Cherokees  in  Georgia  and  other  States,  known 
as  the  Lower  Towns,  became  separated  in  policy.  The  former 
determined  to  remain  permanently  in  the  country  they  then  oc- 
cupied, to  engage  in  the  pursuits  of  agriculture  and  civilized 
life,  and  the  latter  preferred  removing  west  of  the  Mississippi 
where  game  was  more  plenty.  Each  portion  of  the  nation  sent 
on  delegations  to  make  known  to  the  President  of  the  United 


4 

States  the  policy  their  people  desired  to  adopt.  President 
Jefferson  promised  to  gratify  the  wishes  of  both.  Those  who  . 
wished  .to  move  west,  were  to  be  furnished  with  lands  in  that 
country  to  be  the  home  of  such  of  the  tribe  as  might  prefer 
to  emigrate  at  any  subsequent  period,  and  no  further  cessions 
were  to  be  required.  But  the  State  of  Georgia  claimed  that 
the  Government  of  the  United  States  had  stipulated  to  extin- 
guish the  Indian  title  within  her  chartered  limits — urged  the 
conclusion  of  a  treaty,  by  which  this  object  would  be  attained. 
Under  this  influence  a  treaty  was  drawn  up  at  Washington 
city,  nnder  the  direction  of  President  Jackson,  which  formed 
the  basis  of  the  treaty  of  1835.  The  President,  knowing  that 
the  Cherokee  tribe  were  advanced  in  civilization — that  a  large 
number  of  individuals,  including  the  North  Carolina  Chero- 
kees,  were  bitterly  opposed  to  removal  west,  to  conciliate  them 
the  14th  article  of  the  proposed  treaty,  which  finally  became 
the  12th  article  of  the  treaty  of  1835,  was  inserted.  It  pro- 
vided, among  other  benefits  of  the  treaty,  that  they  should 
be  entitled  to  commutation  for  removal  and  subsistence  allow- 
ance of  $53  33  each.  The  12th  article  of  the  treaty  of  1835, 
based  on  the  foregoing,  was  read  and  explained  by  the  United 
States  Commissioner  to  the  Cherokee  people  -  as  containing 
the  same  provisions  with  regard  to  commutation  for  removal 
and  subsistence,  as  was  contained  in  the  orignal  propositions 
and  intructions  of  the  Government  of  the  United  States,  with 
the  addition  of  the  provisions  in  favor  of  the  pre-emption  and 
reserative  rights,  as  the  report  of  the  Commissioner,  John 
P.  Schermerhorn,  published  with  the  documents  accompany- 
ing the  treaty,  prove.  The  North  Carolina  Cherokees,  ascer- 
taining that  a  treaty  had  been  concluded  with  a  small  portion 
of  the  tribe  who  resided  in  Georgia,  and  who  had  passed 
under  the  dominion  of  that  State,  employed  the  undersigned 
to  come  on  to  the  city  of  Washington  to  examine  for  them 
the  provisions  of  the  treaty,  and,  if  necessary,  to  secure  their 
rights — to  remain  in  North  Carolina  with  a  fair  and  equal 
share  of  the  proceeds  of  the  sale  of  the  lands — to  obtain  sup- 
plimental  articles,  or  defeat  its  ratification.  Upon  making 
known  to  the  Commissioner  who  negotiated  the  treaty,  and 
also  to  the  delegation  who  accompanied  him  to  Washington 
the  objects  of  his  mission,  they  contended  that  these  objects 
had  already  been  provided  for  in  the  treaty,  and  this  opinion 
was  concurred  in  by  the  Commissioner  of  Indian  Affairs. 
But  to  guard  against  the  possibility  of  a  construction  being 
placed  on  the  treaty  different  from  the  understanding  at  the 
time  it  was  negotiated,  a  written  explanation  and  agreement 
was  drawn  up  and  signed  by  the  individuals  who  negotiated 
and  signed  the  treaty.     By  this  agreement  it  was  provided, 


That  the  Cherokees  who  remained  in  North  Carolina,  should 
have  the  use  of  the  hunting  ground,  including  a  portion  of 
the  Great  Iron  mountain,  adjacent  to  where  they  desired  to 
form  a  settlement,  and  where  they  now  live,  reserved,  under 
the  treaty  of  1791,  until  the  country  is  settled.  An  explana- 
tory article  was  also  included  in  the  agreement,  which  pro- 
vided as  follows : 

"It  is  further  agreed  that  one  claim  to  which  said  Cheerokees,  do-siring  to 
remain  are  entitled,  by  the  12th  article  of  the  Xew  Echota  Treaty,  amounting 
to  $53  33,  intended  to  place  them  on  terms  of  equality  with  those  who  chose 
to  emigrate  in  two  years  from  the  ratification  of  the  abovenamed  treaty,  who 
are  allowed  that  sum  for  removal  and  subsistence,  out  of  the  money  arising 
from  the  sale  of  the  common  property — shall  be  placed  by  them  on  interest  in 
the  Stnte  Bank  of  North  Carolina,  or  some  other  safe  institution,  civ.,' — (See  Sen. 
Doc.  No.  120.) 

Upon  the  suggestion  of  the  Commissioner  of  Ind  tan  Affrairs, 
this  agreement  was  laid  before  him  to  be  submitted  to  the 
Secretary  of  War  (Governor  Cass)  for  his  decision  thereon. 
He,  on  the  4th  July,  1830,  decided  that  the  North  Carolina 
Cherokees  without  removal,  were  entitled  to  all  the  stipula- 
tions of  the  treaty.— (See  his  letter  1th  July,  1S3G.)  The 
North  Carolina  Cherokees  under  these  circumstances,  were 
induced  to  believe  that  the  Government  of  the  United  States 
would  carry  out  the  treaty,  as  it  was  known  to  have  been  read, 
explained,  and  interpreted  to  and  understood  by  the  Indians — 
surrendered  the  lands  claimed  to  have  been  ceded  under  the 
treaty,  and  purchased  lands  for  themselves,  as  contemplated 
by  the  President  with  reference  to  the  class  that  remained 
east.  But  when  application  was  made  to  the  Government  of 
the  United  States  for  a  compliance  on  her  part,  the  officers  of 
of  the  Government  had  been  changed ;  and  owing  to  this  or 
some  other  cause  it  was  refused  and  a  new  construction  placed 
on  the  treaty,  totally  different  from  the  manner  it  was  known 
to  have  been  understood  by  the  Indians.  Jn  the  meantime, 
the  North  Carolina  Cherokees,  shortly  after  the  ratification  of 
the  treaty  of  lS35-'6  sent  on  to  the  General  Assembly  of 
the  State  a  petition,  setting  forth  their  determination  to  re 
main  in  the  State  after  the  expiration  of  the  two  years  allowed 
for  the  removal  of  the  remaining  portion  of  the  tribe ;  and 
requested  the  passage  of  a  law  for  their  protection.  This  lead 
to  the  passage  of  the  following  act : 

Be  it  enacted,  d'e,  "That  all  contracts  of  every  nature  and  description  made 
after  the  eighteenth  of  May,  one  thousand  eisrht  hundred  and  thiBty-eight,  with 
any  Cherokee  Indian,  or  any  person  of  Cherokee  Indian  blood,  within  the  second 
degree,  for  an  amount  equal  to  ten  dollars  or  more,  shall  be  null  and  void,  unless 
some  memorandum  thereof  be  made  in  writing  and  signed  by  such  Indian,  or 
person  of  Indian  blood,  or  by  some  other  person  by  him  authorized,  in  the  pres- 
ence of  two  creditable  witnesses,  who  shall  also  subscribe  the  same." — (See  act 
of  ISSO-'ST.) 


6 

But  notwithstanding  the  passage  of  this  act,  which,  under 
the  circumstances,  was  virtually  giving  the  sanction  of  the 
State  toxthe  Indians  to  remain  within  her  limits,  the  General 
Government  still  refused  to  pay  them  their  portion  of  the 
funds,  or  to  place  on  interest  the  sum  allowed  under  the  8th 
and  12th  articles  of  the  treaty  of  1835-'6  for  a  commutation 
of  removal  and  subsistence.  The  undersigned  having  repre- 
sented to  the  North  Carolina  Cherokees  that  they  would  be 
entitled  to  this  allowance,  as  well  as  all  other  benefits  of  the 
treaty,  felt  called  on  to  prevent  a  construction  being  placed  on 
it  which  would  deprive  them  of  nearly  all  its  benefits.  Ap- 
plication was  made  to  the  Commissioner  of  Indian  Affairs,  who 
refused  to  make  the  allowance.  An  appeal  was  taken  to  the 
Secretary  of  War,  who  refused  to  reverse  the  decision  of  the 
Commissioner.  An  appeal  was  then  taken  to  President  Yan 
Buren ;  he  expressed  an  opinion  in  favor  of  the  Indians,  but 
went  out  of  ofiice  without  leaving  any  decision  on  record. 
Application  was  subsequently  made  to  President  Tyler,  and 
he  referred  the  question  back  to  the  Indian  Ofiice,  and  by  the 
time  that  adverse  decisions  were  made,  and  appeals  taken  and 
brought  up  to  the  President  for  his  action,  his  term  had  ex- 
pired, and  President  Tyler  left  the  ofiice  without  making  any 
decision. 

With  a  hope  of  enlisting,  at  least,  the  delegation  in  Congress 
from  North  Carolina  in  favor  of  her  Indian  population,  appli- 
cation was  made  to  the  Legislature  of  the  State,  which  lead 
to  the  passage,  by  a  unanimous  vote  of  both  Houses,  of  the  fol- 
lowing resolution : 

Resolutions  relating  to  the  Cherokee  Indians : 

Resolved,  That  our  Senators  and  Representativest  in  the, 
Congress  of  the  United  States  are  hereby  requested  to  use  their 
influence  in  favor  of  obtaining  a  speedy  settlement  of  the  just 
claims  of  the  Cherokee  Indians  residing  in  this  State,  &c. 

Resolved  further,  That  his  Excellency,  the  Governor,  be  re- 
quested to  send  a  eopy  of  the  foregoing  resolutions  to  our  Sena- 
tors and  Representatives  in  Congress. 

Read  three  times  in  the  General  Assemby,  and  ratified  8th 
January,  1846.  \ 

EDWARD  B.  STANLY, 

Speaker  of  the  House  of  Commons. 

BURGESS  S.  GATHER, 

Speaker  of  the  Senate. 

The  passage  of  this  resolution  had  the  effect  which  had 
been  anticipated,  and  it  satisfied  the  Government  of  the  United 
States  that  the  State  of  North  Carolina,  after  the  expiration  of 


ten  years  from  the  date  of  the  treaty,  still  preserved  her  kind 
parental  policy  towards  this  small  remnant  of  the  aboriginal 
inhabitants  of  the  State. 

It  has  already  been  mentioned  that  unsuccessful  efforts  had 
been  made  during  two  Administrations.  As  soon  as  Presi- 
dent Polk  came  into  office,  application  was  made  to  him  to  do 
justice  to  the  North  Carolina  Cherokees,  and  he,  following  in 
the  footsteps  of  his  predecessors,  sent  the  application  to  the 
Indian  Office ;  this,  in  course  of  time,  was  followed  by  another 
rejection,  from  which  an  appeal  was  taken  to  the  Secretary  of 
War,  Governor  Marcy,  who  referred  the  question  to  President 
Polk.  On  the  11th  of  June,  18-15,  he  referred  the  questions 
raised  by  me  to  the  Attorney  General  for  his  opinion  thereon. 
During  the  summer  of  that  year  I  went  north,  and  obtained 
the  evidence  of  John  F.  Schermerhorn,  the  Commissioner  who 
concluded  the  treaty  of  1835,  which  established  the  fact  that 
the  North  Carolina  Cherokees  were  neither  present  or  repre- 
sented at  the  Council  in  Georgia  that  concluded  the  treaty, 
which  was  filed  in  the  case. 

On  the  19th  day  of  September,  1845,  the  Attorney  General 
gave  his  opinion  thereon,  as  follows : 

"On  the  11th  of  June  last,  you  did  me  the  honor  to  refer  to  me  a  report  of 
the  Commissioner  of  Indian  Affairs  of  the  19th  of  May,  and  a  reply  thereto  of 
Wm.  H.  Thomas,  on  behalf  of  Cherokee  Indians,  on  ■which  you  desired  my  opin- 
ion in  writing.  In  a  memorandum  among  the  papers  transmitted,  there  are  four 
questions  propounded: 

"1st.  Are  the  Cherokees  remaining  in  the  State  of  North  Carolina  and  Ten 
nessee  entitled,  under  the  8th  and  12th  articles  of  the  Cherokee  treaty  of  De 
c  ember,  1835,  to  $53  33  for  their  claims  for  removal  and  subsistence  allowance, 
which  lias  been  paid  to  the  Cherokees  in  Georgia? 

"2d.  In  the  event  that  the  Attorney  General  should  be  of  opinion  that  the 
Cherokees  in  North  Carolina  and  Tennessee  are  not  entitled  to  compensation  for 
their  claims,  &c,  whether  the  grant  made  by  the  State  of  North  Carolina  to 
the  Cherokee  Indians,  in  the  year  1783,  vested  the  fee  simple  title  in  the  In- 
dians while  they  continued  to  reside  thereon ;  and  whether,  under  the  provi- 
sions of  the  grant,  the  fee  simple  title  has  not  vested  exclusively  in  the  Chero- 
kee Indians  within  its  limits? 

"  3d.  Whether  the  treaty  of  1835,  made  with  the  Cherokee  Indians  of  Georgia, 
does  or  does  not  legally  convey  to  the  United  States  the  lands  granted  to  the 
North  Carolina  Indians,  by  the  act  of  17S3?  Whether  the  power  of  the  Chero- 
kees, as  a  nation,  had  or  had  not  ceased  to  exist  nt  the  lime  the  treaty  of  De- 
cember, 1835,  was  concluded,  in  consequence  of  the  tribe  having  passed  under 
the  dominion  of  the  State? 

"  ith.  Whether  the  relinquishment  of  interest  in  the  lands,  which  the  treat}" 
of  1835  purport  *to  convey,  is  or  is  not  confined  to  those  Cherokees  who  have 
and  do  receive  their  due  portion  of  the  consideration  money;  and  whether  the 
title  of  those  who  received  no  part  of  the  compensation  has  passed  to  the  United 
States? 

"The  first  of  these  involves  an  inquiry  whether,  under  the  treaty  of  New 
Echota,  those  Cherokees  who  remained  in  the  States  of  Tennessee  and  North 
Carolina  are  entitled,  under  the  8th  and  12th  articles  of  the  treaty,  to  $53  33 
lor  removal  and  subsistence  allowance. 

"This  inquiry  is  embarrassed  by  the  fact  that  those  allowances  have  been 
made  to  Cherokees  who  have  remained  in  Georgia,  by  decisions  at  the  War  De- 


partment,  and  by  the  fact  of  payment  being  made  to  others  of  the  tribe  who 
did  not  emigrate.  By  the  joint  resolution  of  Congress,  approved  June  15, 
1844,  the  interpretation  under  which  the  Georgia  Indians  were  paid  appears 
to  have  been  acted  on  by  the  "War  Department  but  for  a  short  time,  &c. 

"  In  the  papers  accompanying  your  communication  are  several  statements 
furnished  by  the  Commissioner  who  uegotiated  the  treaty  on  the  part  of  the 
United  States,  and  by  respectable  persons  Avho  were  privy  to  the  negotiation 
tending  to  show  that  the  Indians  were  assured  that  those  who  did  not  migrate 
should  have  the  benefit  of  this  pecuniary  allowance. 

"In  its  construction,  it  is  said  that  the  language  used  in  treaties  with  Indians 
should  never  be  construed  to  their  prejudice."  *  *  *  "  How  th  e  words  of 
the  treaty  were  understood  by  this  unlettered  people,  rather  than  their  actual 
meaning,  should  form  the  rule  of  construction. 

"According  to  well-established  rules  of  law,  I  am  of  opinion  that  this  evi- 
dence is  inadmissible  to  establish  a  construction  of  the  treaty  inconsistent  with 
its  provisions.  Whatever  may  be  done  by  Congress  to  fulfill  expectations "thus 
created,  I  am  clearly  of  opinion  that  the  Executive  cannot  execute  the  treaty 
on  any  such  construction. 

"The  other  three  questions  may  be  solved  into  three  inquiries:  whether  the 
lands  in  North  Carolina  belonged  to  the  North  Carolina  Indians  residing  upon 
them.  These  lands  have  been  sold  by  the  State  North  Carolina,  and  are,  I  pre- 
sume, in  the  possession  of  the  purchasers.  As  the  Executive  of  the  United 
States  would  have  no  power  to  divest  those  in  possession,  and  the  question  is 
one  for  the  Judiciary,  I  have  deemed  it  unnecessary  to  embrace  my  views  upon 
it  in  this  communication.  Nor  have  I  deemed  it  proper  to  express  my  opinion 
on  the  hard  measure  which  seems  to  have  been  dealt  out  to  the  North  Carolna 
Indians,  whose  lands  have  been  sold,  while  they  have  received  no  correspond- 
ing benefit.  I  have  examined  the  question  as  one  of  legal  construction  only, 
and  have  no  doubt  of  the  correctness  of  my  conclusion  in  that  respect." 

JOHN  Y.  MASON. 

This  opinion,  on  the  2d  of  October,  1845,  was  approved  by 
the  President  of  the  United  States,  who  made  the  following 
endorsement  thereon :  "  I  concur  in  opinion  with  the  Attor- 
ney General." 

The  following  conclusions  are  deducible  from  the  foregoing 
opinion  of  the  Attorney  General  and  President  of  tne  United 
States : 

1.  That  hard  measures  had  been  dealt  out  the  North  Caro- 
lina Indians,  whose  land  had  been  sold,  for  which  they  had 
received  no  corresponding  benefit. 

2.  That  if  the  decision  had  been  made  upon  the  question 
submitted,  as  respected  the  title  of  the  United  States  to  their 
land,  under  the  treaty  of  1835,  it  would  have  been  that  it 
was  defective.  For  if  it  had  not  been  believed  that  the  deci- 
sion, if  made,  would  be  as  stated,  the  reason  fot  declining  to 
give  it  did  not  exist. 

This  opinion  established  a  few  additional  facts  favorable  to 
the  Indians. 

1st.  That  equity  was  in  favor  of  construing  the  treaty  as 
understood  by  the  parties ;  and  that  it  was  left  for  Congress 
to  make  good  the  promises  which  induced  a  submission  to  the 
treaty. 


9 

2d.  That  if  the  promises  of  the  Government  were  not  com- 
plied with,  the  North  Carolina  Cherokees  had  a  remedy,  by 
instituting  a  suit  in  the  Supreme  Court  for  the  lands  granted 
to  them  under  the  act  of  1783. 

3d.  That  "  hard  usage  had  been  dealt  out  to  the  North 
Carolina  Cherokees."  In  this  he  no  doubt  had  reference  to 
the  manner  that  the  fund  stipulated  to  be  paid  for  the  cession 
of  the  land  under  the  treaty  of  1835,  had  been  disposed  of 
without  any  equivilent  to  the  North  Carolina  Cherokees. 

For  the  lands  owned  by  the  tribe  situated  west  of  the  Mississippi.  $500,000  00 

For  a  permanent  national  fund 404,000  00 

For  purposes  of  education 300,000  00 

For  orphan's  fund 50,000  00 

Paid  to  John  and  Louis  Ross  for  removal  and  subsistance  of  the 
Cherokees,  more  than  the  sum  of  $53  33,  fixed  by  the  Sth  arti- 
•  cle  of  the  treaty  of  1832,  as  chargeable  to  the  fund  for  these  ob- 
jects      581,846  SS 

Also,  the  Government  distributed  per  capita  among  the  Western 

Cherokees,  paid  out  of  the  per  capita  fund 172,000  00 

Making  the  aggregate  sum  of. $2,007,346  88 

Out  of $5,000,000  00 

"With  this  state  of  facts,  when  the  12th  article  of  the  treaty, 
as  well  as  the  explanatory  agreement  with  the  chiefs,  provided 
that  the  North  Carolina  Cherokees  should  receive  "  their  due 
portion  "  of  the  funds,  it  was  not  strange  that  the  Attorney 
General,  as  well  as  the  President  of  the  United  States,  should 
admit  that  "  hard  measures  had  been  dealt  out  to  that  portion 
of  the  tribe."  To  remedy  the  injustice  that  had  been  done  to 
those  Indians,  President  Polk  transmitted  the  arguments  in 
their  favor,  accompanied  by  a  map  of  the  lands  in  North 
Carolina  and  Tennessee,  claimed  by  the  North  Carolina  Chero- 
kees, under  the  grant  of  1783,  to  Congress  on  the  11th  of 
April,  1810,  accompanied  also  with  a  recommendation  in  favor 
of  justice  being  done  to  the  Indians. 

The  President's  message,  as*  well  as  the  papers  relating  to 
the  Cherokees,  were  printed  under  a  resolution  of  Congress, 
and.  are  referred  to  as  a  proof  of  the  foregoing  statement. 
This  lead  to  the  appointment  of  commissioners,  to  conclude 
a  new  treaty  with  the  Cherokee  tribe  west,  as  a  supplement 
to  the  treaty  of  1835.  Efforts  were  made  before  the  commis- 
sioners, by  General  "Waddy  Thompson,  Attorney  for  the  West 
ern  Cherokees,  to  have  an  article  inserted  which  should  de- 
prive the  North  Carolina  Cherokees  of  their  portion  of  the 
fund  remaining  to  be  distributed  per  capita.  By  permission 
of  the  President,  on  the  3d  of  August,  1S16,  I  filed  an  argu- 
ment before  the  commissioners  in  favor  of  the  North  Carolina 
Cherokees,  and  in  opposition  to  the  insertion  of  an  article  to 
exclude  that  portion  of  the  tribe  from  a  share  of  the  small 


10 

amount  of  per  capita  that  remained  to  be  distributed,  under 
the  treaty  of  1835.  The  commissioners  decided  in  their  favor, 
and  inserted  the  10th  article  to  protect  their  interest. 

"  It  is  expressly  argued  that  nothing  in  the  foregoing  treaty  contained  shall  be 
so  construed,  as  in  any  manner  to  take  away  or  abridge  any  rights  or  claims  of 
the  C'herokces,  now  residing  in  the  States  west  of  the  Mississippi  had  or  may  have, 
under  the  treaty  of  1835,  and  supplement  thereto. — (See  treaty  of  1846.) 

As  the  last  resort  application  was  made  to  Congress  to  make 
provision  for  the  North  Carolina  Cherokees,  in  accordance 
with  the  treaty  of  1835,  as  understood  by  both,  parties  at  the 
time  it  was  negotiated,  which  resulted  in  the  passage  of  the 
following  act,  which  bears  date  29th  July,  1848 : 

Sec.  4.  Be  it  enacted,  &c,  "  That  the  Secretary  of  War  cause  to  be  ascertained 
the  number  and  names  of  such  individuals  and  families,  including  each  member 
of  every  family,  of  the  Cherokee  nation  of  Indians  that  remained  in  the  State 
of  North  Carolina  at  the  time  of  the  ratification  of  the  treaty  of  Echota,  May 
twenty-three,  eighteen  hundred  and  thirty -six,  and  who  have  not  removed  west 
of  the  Mississippi,  or  received  commutation  for  removal  and  subsistence,  and 
report  the  same  to  the  Secretary  of  the  Treasury ;  whereupon  the  Secretary  of 
the  Treasury  shall  set  apart,  out  of  any  moneys  in  the  Treasury  not  otherwise  ap- 
propriated, a  sum  equal  to  fifty-three  dollars  and  fifty-three  cents  for  each  indi- 
vidual ascertained  as  aforesaid,  and  that  he  cause  to  be  paid  to  every  such  indi- 
vidual, or  his  or  her  legal  representatives,  interest  at  the  rate  of  six  per  cent,  per 
annum  on  such  per  capita  from  the  said  twenty-third  day  of  May,  eighteen  hun- 
dred and  thirty-six,  to  the  time  of  the  passage  of  this  act,  and  continue  annually 
thereafter  the  said  payment  of  interest  at  the  rate  aforesaid. 

Under  the  recited  act  the  census  was  taken,  and  the  aggre- 
gate sum  of  $80,901  51  was  set  apart  in  the  Treasury  as  a 
trust  fund  for  the  North  Carolina  Cherokees. 

The  foregoing  act  preparatory  to  making  the  payment  of 
interest  was  referred,  on  the  19th  of  January,  1850,  to  the 
Hon.  Albion  K.  Parris,  Second  Comptroller  of  the  Treasury, 
to  settle  the  construction  of  the  law. 

On  the  12th  of  January,  1850,  his  opinion  was  given  thereon, 
in  which  he  says,  after  quoting  the  lav/: 

uIn  case  of  the  death  of  a  person  interested  in  the  fund,  the  legal  representa- 
tive of  such  person  would  succeed  to  his  right,  and  might  claim  the  interest  so  long 
as  the  find  continued ;  this  is  in  accordance  with  the  language  of  the  4dh  section. 

This  opinion  of  the  Second  Comptroller,  under  the  laws  of 
Congress  establishing  the  Treasury  Department,  was  final,  and 
it  was  not  subject  to  any  change  by  the  Secretary  of  the  Treas- 
ury or  the  President  of  the  United  States.  (See  opinions  of 
the  Hon.  William  Wirt,  upon  the  power  of  the  Comptroller 
to  settle  the  construction  of  the  acts  of  Congress,  vol.  1,  page 
624;  vol.  4,  page  221,  of  the  Opinions  of  the  Attorney  Gene- 
ral.) 

The  decision  of  Judge  Parris,  as  to  the  construction  of  the 
act  of  July  29,  184S,  was  approved  and  adopted  by  the  Secre- 
tary of  the  Treasury,  the  Hon.  Thomas  Corwin,  as  the  instruo- 


11 

tions  to  the  disbursing  officer  prove.  In  the  instructions  that 
were  issued  to  C.  M.  Mitchell,  the  disbursing  agent,  under  date 
of  July  14,  1851,  it  is  stated: 

"  You  will  be  governed  by  the  following  general  principles : 

'*  To  all  the  Indians  of  lawful  age,  now  living,  payment 
of  the  respective  sums  due  to  each,  to  be  made  to  the  Indians 
direct. 

'"All  sums  due  to  minor  children,  now  deceased,  to  be  paid 
to  the  parents,  if  living. 

"  In  cases  of  deceased  wife  or  husband,  the  amount  due  to  be 
paid  to  the  survivor. 

"  In  all  such  instances  where  the  deceased  left  neither  hus- 
band nor  wife,  {as  the  case  may  be,)  tJien  to  be  paid  to  the  legal 
representatives  these  amounts." 

Under  the  instructions  the  interest  due  to  the  North  Caro- 
lina Cherokees  was  paid  by  the  agent,  and  his  accounts  settled 
by  the  accounting  officers  of  the  Treasury  Department. 

It  was,  in  a  few  years,  discovered,  that  to  continue  the  pay- 
ment of.  interest,  as  provided  by  the  act  referred  to,  for  an 
indefinite  period,  would  be  attended  with  much  inconvenience. 
Hence,  preparatory  measures  were  adopted  by  Congress,  in 
1855,  to  pay  over  the  trust  fund  of  the  North  Carolina  Chero- 
kees, provided  that  they  would  consent  to  receive  it. 

And  be  it  further  enacted,  "That  the  Secretary  of  the  Interior  is  hereby  au- 
thorized and  required  to  cause  to  be  paid  to  the  North  Carolina  Cherokees.  em- 
braced in  the  roll  of  John  C.  Mulloy,  or  the  legal  representative  of  each  of 
them  as  have  died  since  their  enrollment,  the  sum  of  fifty-three  dollars  and  thirty- 
three  cents,  respectively,  for  the  expenses  of  their  removal  and  subsistence,  note 
held  in  trust  by  the  United  States,  according  to  the  terms  of  the  4th  section  of  the 
act  of  twenty-ninth  Jidu,  anno  domini  eighteen  hundred  and  forty-eight,  Provided: 
That  each  and  every  Indian  so  receiving  such  payment,  made  in  full,  shall  give 
his  assent  thereto;  And,  provided  further,  That  the  Secretary  shall  be  first  sat- 
isfied that  the  State  of  North  Carolina  has,  before  such  payment,  by  some  appro- 
priate act,  agreed  that  the  said  Cherokees  may  remain  permanently  in  the  State ; 
anything  in  tiie  treaty  of  eighteen  hundred  and  thirty- five-six  to  the  contrary, 
notwithstanding." 

Since  the  passage  of  the  recited  act,  by  Congress,  the  State 
of  North  Carolina  has  not  deemed  it  necessary  to  legislate  on 
the  subj ect.  With  her  it  is  a  matter  of  no  consequence  whether 
the  Government  of  the  United  States  retains  or  pays  over  the 
fund  held  in  trust  for  the  North  Carolina  Cherokees.  Nor  is 
it  probable  that  her  Legislature,  after  what  has  already  been 
done,  deems  it  necessary  to  legislate  further  on  the  subject. 
She  has  acquiesced  in  the  Cherokee  treaties  of  1817,  1819, 
1835,  and  1816,  which  secured  those  Indians  the  right  10  re- 
main in  the  State,  which,  agreeably  to  the  decision  of  her 
Supreme  Court,  as  expressed  in  the  case  of  Euchelhi  vs.  AVelch, 
th>  >se  treaties  and  the  rights  acquiesced  under  them  were  held 


12 

to  be  the  paramount  law  of  the  land,  under  the  Constitution 
of  the  United  States  "  anything  in  the  laws  of  a  State  to  the 
contrary,  notwithstanding." 

And  not  only  the  Supreme  Court  of  the  State  had  decided 
that  the  effect  of  those  treaties  was  to  confer  rights  of  citizen- 
ship on  the  Cherokees,  which  could  not  be  abrogated  by  any 
act  of  the  State — but  the  State,  instead  of  opposing  these 
rights,  acquiesced  under  the  treaties,  and  sanctioned  their  resi- 
dence in  the  State.  If  she  had  been  opposed  to  those  Indians 
remaining,  would  she,  in  1836,  have  passed  a  law  for  their 
protection,  to  extend  to  all  such  individuals  as  remained  in  the 
State?  Would  she,  in  1845,  have  passed  a  resolution  "re- 
questing her  Senators  and  Representatives  in  Congress"  to  use 
their  influence  in  favor  of  having  justice  done  to  those  Indians? 
And  would  she,  at  the  same  session,  have  passed  an  act  au- 
thorizing those  Indians  residing  in  Jackson  county,  which 
constitutes  the  principal  settlement  in  the  State,  to  form  them- 
selves into  an  incorporated  company,  under  the  seal  of  the 
State,  to  purchase  and  hold  lands  for  the  term  of  ninety-nine 
years,  under  the  name  of  the  "  Cherokee  Company  ?"  And 
after  protecting  those  Indians  for  near  a  quarter  of  a  century, 
without  any  attempt  on  her  part  to  have  them  molested  in 
any  way,  it  is  quite  probable  that  she  may  not  deem  further 
legislation  necessary. 

Xor  is  it  probable  that  the  State  would  be  willing  to  re- 
ceive the  trust  fund,  and  incur  the  expenses  incident  to  dis- 
tributing the  interest,  now  incurred  by  the  United  States, 
which,  including  clerk-hire  in  the  Departments,  very  proba- 
bly exceeds  ten  per  cent,  on  the  fund.  And  this  must  be 
greatly  increased,  as  the  Indians,  whose  funds  were  set  apart 
in  the  Treasury,  die ;  and  the  small  sum  to  which  each  indi- 
vidual is  entitled,  $3,19  has  to  be  divided  among  their  heirs. 
Scattered,  as  a  large  portion  of  them  now  are,  over  a  territory 
not  less  than  three  hundred  miles  in  circumference,  and 
besides  the  difficulty  of  making  payment,  in  consequence 
of  the  smallness  of  the  sum  and  the  great  distance  they  have 
been  separated.  There  is  another  of  identity,  which  will 
give  much  trouble.  Amalgamation  has  been  going  on  until 
even  a  clerk,  sent  from  the  Indian  Office,  has  been  unable  to 
report  whether  or  not  there  is  enough  Indian  blood  in  some 
families  to  be  considered  Indians,  as  he  was  unable  to  distin- 
guish them  by  color.  And  even  the  few  full-blood  Indians 
remaining  in  the  country,  as  the  census  of  1850  prove,  are 
further  advanced  in  civilization  than  any  tribe  west  of  the 
Mississippi. 

They  have  among  them  farmers,  shoemakers,  blacksmiths, 
gunsmiths,  coopers,  chairmakers,  wheelwrights,  house-carpen- 


13 

ters,  &c.  And  the  females  have  learned  to  card,  spin,  and 
the  use  of  the  hand-loom,  by  which  they  manufacture  their 
clothing.  And  one  of  the  best  churches  in  the  county  of 
Jackson,  was  built  by  those  Indians.  They  not  only  practice 
the  mechanic  arts  for  their  own  people,  but  for  the  whites  ad- 
jacent, to  their  settlements.  They,  however,  principally  live 
by  agriculture,  and  not  only  make  a  support  for  themselves, 
but  make  a  surplus  which  is  sold  to  the  whites.  A  larger 
portion  of  these  Indians  can  read  the  scriptures  than  can  be 
found  among  the  white  population  in  three-fourths  of  the 
States,  as  shown  by  the  census  of  1850.  They  have  their 
own  preachers,  who  teach  them  the  divine  instructions  of  the 
Bible,  and  to  worship  that  Supreme  Being,  who  made  the 
red  as  well  as  the  white  man.  Those  Indians,  enrolled  under 
the  act  of  July  29,  1848,  and  their  descendants,  while  a  por- 
tion of  them,  like  all  other  communities,  are  very  poor  in  the 
aggregate,  they  probably  own  not  less  than  a  quarter  of  a 
million  of  dollars  in  property,  &c,  and  should  any  portion  of 
them  in  future  desire  to  unite  with  the  tribe  west,  it  is  quite 
probable  that  the  sale  of  their  lands  east  will  furnish  the 
means  of  removing  them  to  the  Cherokee  country  west,  in 
which  they  have  a  common  interest.  But,  in  addition  to  the 
rights  that  those  people  have  under  the  treaties  and  laws,  as 
admitted  by  the  State,  which  are  sufficient  to  protect  them 
under  a  writ  of  habeas  corpus  against  molestation  from  any 
quarter,  their  rights  to  remain  have  been  reorganized  by  the 
Government  of  the  United  States,  not  only  in  the  act  of  July 
29,  1848,  but  in  the  decisions  of  the  Executive,  for  near  a 
quarter  of  a  century.  The  last  decision  of  the  Executive 
branch  of  the  Government  was  given  by  the  Hon.  John  J. 
Crittenden,  when  Attorney  General  of  the  United  States,  on 
a  question  raised  by  the  Commissioner  of  Indian  Affairs. 
This  opinion  bears  date  11th  April,  1851,  in  relation  to  the  por- 
tion of  the  tribe  then  remaining  in  the  States  east  of  the 
Mississippi  river. 

Permission  was  granted  to  file  an  argument  in  defence  of 
the  rights  of  the  North  Carolina  Cherokees.  A  quotation 
from  it  explains  the  attachment  of  those  people  to  their 
native  country  and  their  deep  regret  at  the  continued  indi- 
rect invasion  of  their  rights,  emanating  from  the  Indian  office. 

In  speaking  of*  the  condition  of  the  North  Carolina  Chero- 
kees, and  the  country  occupied  by  them,  it  is  stated — 

"That  country  is  endeared  to  those  Indians  by  the  graves  and  sacred  relics 
of  their  ancestors;  the  bones  of  their  children,  sisters,  brothers,  fathers,  and 
mothers,  lie  there;  they  say,  'We  cannot  leave  them;  let  us  alone  in  the  laud 
of  our  fathers.  Why  ask  us  to  remove  West?  We  once  owned  all  the  lard 
that  could  be  seen  from  the  tops  of  our  highest  mountains  ;  will  you  not  permit 
us  to   enjoy  in   peace  the  small  quantity  we  have  purchased  ?'     They  ask, 


u 

'Where  are  our  brothers,  who  were* forced  from  the  mountains  of  North  Caro- 
lina? Two-thirds  have  been  buried  on  the  road  to  Arkansas,  and  in  that  sickly 
country.  Where  are  the  Ridges  and  Boudinots,  who  were  promised  the  protec- 
tion of  the  United  States?  Have  they  not  been  massacreed  ?  Their  blood 
cries  from  the  ground.  Where  are  the  midnight  assassins  ?  Have  they  not 
been  pardoned  by  the  Cherokee  Government,  without  trial,  contrary  to  both 
law  and  treaties?  Will  you  then  ask  us  to  remove,  and  join  a  Government  too 
weak  and  too  unjust  to  protect  us,  and  leave  a  State  where  our  lives,  libeities, 
and  property,  are  secured? — where  our  rights  to  remain  are  guarantied  by  sol- 
emn treaties?' " 

Fortunate  for  the  Indians  in  the  office  of  the  Attorney  Gen- 
eral was  found  too  high  a  regard  for  justice,  and  the  sacred 
obligations  of  treaties  to  favor  the  policy  proposed  by  the  re- 
puted Father  of  the  red  man  of  the  forest,  as  the  opinion 
demonstrates : 

"  Question  fourth :  '  If  any  of  the  Cherokees  who  have  not  removed  west  of  the 
Mississippi  river  are  entitled,  may  they  be  required  to  emigrate,  as  a  condition 
precedent  to  their  being  paid?'  Answer:  The  treaty  of  1835,  article  twelve, 
conceded  the  rights  of  individuals,  and  families  of  Cherokees,  who  were  averse 
to  the  removal  to  the  Cherokee  country  west  of  the  Mississippi,  to  remain  east, 
and  to  receive  their  due  portions  of  the  money  to  be  distributed  per  capita. 
The  treaty  of  1846,  article  ten,  recognised  these  claims  of  the  Cherokees  then,  at 
the  date  of  the  treaty,  residing  east  of  the  Mississippi  river.  On  this  subject  I 
have  hereinbefore  expressed  my  views.  To  require  these  Indians,  so  residing 
east  of  the  river  Mississippi  at  the  date  of  the  treaty  of  August,  1 846,  to  remove 
to  the  Cherokee  country  west,  as  a  condition  precedent  to  their  being  paid  their 
dividend  per  capnta  of  the  balance  of  the  purchase  money  for  the  lands  east  of 
the  Mississippi  river,  ceded  by  their  nation  to  the  United  States,  would  be 
without  any  authority  of  law,  and  a  breach  of  the  faith  of  the  treaties  of  1835 
and  1846,  as  I  think  and  firmly  believe. 

"  Very  respectfully,  yours,  &c, 

JOHX  J.  CBITTENDEX. 

Since  the  foregoing  opinion  was  given,  the  policy  of  the 
Government  of  the  united  States  has  undergone  a  change, 
and  instead  of  moving  the  Indian  tribes  from  place  to  place 
as  formerly,  to  keep  them  from  coming  in  contact  with  the 
white  population,  the  policy  of  the  Government  is,  as  it  should 
be,  to  encourage  the  Indians  in  the  pursuits  of  agriculture  and 
civilized  life  in  the  country  they  occupy.  To  complete  this 
policy  the  Indian  territory  if  formed  into  a  state  where  the 
Indian  tribes  could  enjoy  all  the  political  and  social  rights  of 
the  white  race,  would  hold  out  a  strong  inducement  for  the 
scattering  individuals  of  the  tribes  remaining  in  the  states  to 
join  their  brethren  west.  But  even  supposing  that  to  take 
place,  and  that  any  portion  of  the  Cherokees  remaining  east 
should  desire  to  go  west,  it  would  be  a  voluntary  removal  of 
the  Indians,  with  which  all  their  friends  would  be  satisfied 
and  the  Indians  themselves  could  not  justly  complain. 

In  conclusion,  I  beg  leave  to  refer  the  Committee  to  the 
objects  designed  to  be  effected  by  the  passage  of  a  law  em- 
bracing the  principles  contained  in  the  resolution  now  under 
consideration. 


15 

1st.  A  fixed  period,  the  29tli  of  July,  will  be  established  to 
estimate  the  interest  due  the  iSTorth  Carolina  Cherokees. 
This,  it  is  presumed,  will  lead  to  some  regularity  in  the  pay- 
ment of  interest  upon  so  much  of  the  trust  funds  as  may 
remain  in  the  Treasury  on  that  day. 

Hitherto,  for  more  than  half  the  time  since  the  fund  was 
set  apart  in  the  Treasury,  great  irregularity  has  prevailed  in 
the  payment  of  the  interest  due  under  the  act  of  July  29, 
1848.  And  at  this  time  there  is  probably  not  less  than  eleven 
thousand  dollars  of  the  interest  due  unpaid.  The  passage  of 
a  law  fixing  a  time  of  payment,  and  calculating  interest  upon 
what  remains  unpaid  at  that  time,  would  tend  to  prevent  those 
continued  delays  in  making  payment,  which  are  no  doubt 
measurably  caused  by  a  desire  to  avoid  the  trouble  of  prepar- 
ing the  pay  roll,  and  making  payment  of  those  small  sums  to 
the  great  numbers  of  the  legal  representatives.  Because  it 
would  be  a  slander  on  the  Government  to  suppose  that  the 
payment  of  interest  was  withheld  with  a  view  of  gradually 
embezzling  any  part  of  the  funds  held  in  trust  for  the  In- 
dian tribes,  or  the  interest  due  thereon. 

After  teaching  the  Indians  to  look  up  to  the  head  of  the  In- 
dian Bureau  as  Father,  to  the  Secretary  of  Interior  as  Great 
Father,  and  to  the  President  of  the  United  States  as  Great 
Grand  Father,  to  attempt,  under  any  pretext,  to  set  up  a  claim 
to  either  their  trust  funds  or  interest,  would  tend  to  destroy 
the  confidence  of  all  the  tribes  in  the  Government  of  the 
United  States,  and  the  relation  of  Father,  Great  Father,  and 
Great  Grand  Father  would  soon  change,  and  their  influence 
over  the  Indian  tribes  cease  to  exist,  and  they  would  justly 
become  the  enemies,  instead  of  friends,  of  the  Government. 

2d.  The  Secretary  to  pay  over  the  principal  and  interest 
that  has  accrued  due  to  the  deceased  Cherokees,  embraced  in 
the  census  roll,  to  their  legal  representatives.  And  in  case  of 
their  having  no  lawful  heirs,  to  be  equally  divided  among  the 
survivors  on  the  census  roll,  or  their  legal  representatives. 
This  would  obviate  the  difficulty  of  making  payments  in  cases 
where  the  sum  would  be  too  small  for  the  claimants  to  come 
to  the  agent  after  it,  and  too  expensive  for  the  Government 
to  send  it  to  them. 

3d.  By  providing  that  the  distribution  of  interest  shall  be 
in  accordance  with  the  laws  of  the  State,  the  uncertainty  of 
Indian  customs,  in  the  distribution  of  estates,  would  be  avoided, 
which,  since  those  Indians  have  abandoned  polygamy,  becomes 
important  in  the  distribution  of  estates,  and  by  confining  it 
to  those  remaining  in  the  State,  and  in  case  a  family  becomes 


16 

extinct,  by  dividing  the  funds  among  the  survivors,  the  proper 
persons  will  receive  it  for  whom  it  was  intended. 

But  if  the  Government  prefers  to  retain  the  fund  to  paying 
it  over,  all  that  is  asked  on  the  part  of  the  Indians  is,  that  ar- 
rangements shall  be  made  to  pay  over  the  arrearages  of  in 
te,rest  due,  and,  in  future,  provide  that  interest  shall  be  paid 
on  all  the  money  that  remains  unpaid  on  the  29th  of  July  in 
each  year.  The  Government  cannot  reasonably  complain  of 
paying  the  interest  provided  by  law  for  the  use  of  the  fund 
held  as  trustee  for  the- Indians;  and  when  she  fails  to  pay  the 
interest,  to  pay  over  the  principal.  Equity  and  good  faith  re- 
quire that  one  should  be  done  without  unreasonable  delay. 
And  as  to  the  remainder  of  the  trust  fund,  the  Secretary  of  the 
Interior  is  already  authorized  to  pay  it  over,  under  the  act  of 
1855,  when  he  shall  be  satisfied  that  North  Carolina  has  as- 
sented to  the  Indians  remaining  permanently  in  the  State. 

Iiespectfully  submitted, 

WE  H.  THOMAS. 


This  book  must  not 
be  taken  from  the 
Library  building. 


Form  No.  471 


